As I have previously mentioned most co-authors of this blog are enjoying the 2013 conference of the International Association of Consumer Law in Sydney. We have already listened to many interesting presentations and luckily more are still ahead! From the sessions I've attended so far, the one on digital marketplace had the most lively discussion. Many important issues have been raised, but I wanted to mention here one of the presentations that showed that EU law may at times create adverse effects for EU consumers, even when it's trying to protect them.
Trish O'Sullivan from New Zealand discussed the problem of 'contract on dispatch' terms in English law. Apparently, many English service providers (among others: Amazon UK, Sainsbury's UK, Tesco UK, Marks & Spencer UK) have added a clause to their standard contract terms and conditions pursuant to which a contract is not seen as concluded until the goods have been dispatched to consumers. How could this possibly harm consumers? Well, if a consumer purchases goods online, pays for them and they fail to be delivered, he normally could rely on contractual remedies. This clause, however, seems to preclude this by allowing a service provider to defend himself from any contractual remedies claimed by the consumer by arguing that no contract was concluded. Of course, there are ways in which to deflect such a service provider's claim, e.g., consumer could use estoppel or unfair contract terms argument. Still, a surprising aspect is that this clause could have been added to standard contract terms and conditions as a result of the implementation of Art. 10 of E-commerce Directive that required online service providers to inform consumers upon completion of what technical steps a contract was concluded. Of course, what was meant by this provision was that the consumer should know whether by clicking 'accept' or 'buy' button on any website he has already purchased a good or has only made an offer to buy a good (that then had to be accepted by the service provider). Instead, it seems that some online service providers decided to give a different, less consumer-friendly meaning to this provision.